The Doyle Report

What's the best county government structure?

November 25, 2011

A few years ago the legislature permitted Berkeley County to change its county government from a three-member "county commission" to a five-member "county council."

Prior to that only Jefferson County had more than three members on its governing body (we had then and still have five). Until about 30 years ago Preston County had an eight-member governing body.

Each of Preston's eight were elected from magisterial districts (one from each of the county's eight districts). Every other county's governing body consisted of members elected "at-large" (countywide).

Preston did away with this form of government after a series of tie votes. Preston went to the standard (for West Virginia) three-member county commission. Now every county (including Jefferson) has a government consisting of members elected at-large. Often Jefferson County commissioners are said (mistakenly) to "represent" different parts of the county. An elected official "represents" the people who elect him or her. Since Jefferson County commissioners are each elected by the entire county, each "represents" the entire county, not the magisterial district in which they live.

State law prohibits two or more county commissioners from residing in the same district. Since Jefferson County has five magisterial districts and five commissioners, each magisterial district has one commissioner residing in it.

The permission given Berkeley County to change its government structure culminated a debate that had lasted a couple of years. Petitions had come from both Berkeley and Hampshire counties to change their forms of government. Hampshire's petition was denied.

At the time there was no statute outlining procedures for changing county government structure. There was (and still is) a provision in the state constitution allowing the submission of a petition by either the existing government or a group of citizens to change the form of county government. But it offered no clear guidance.

Some folks had read that provision to say that the legislature was required to schedule a referendum on any petition to change county government, providing the petition stated a specific alternative form of government. Others, however, contended that requiring such a petition to be submitted to the legislature meant that approval was not to be considered automatic.

The legislature is set up by the state constitution to be a policymaking body. Had the authors of the provision in question intended for approval to be automatic, goes this argument, they would have had the petition sent to a ministerial functionary (like the Secretary of State).

The State Supreme Court ruled, in a case over the Hampshire County petition, that the legislature does indeed have discretion as to whether to approve or disapprove any petition for a change in county government structure.

Subsequently, the legislature passed a law outlining procedures for presenting petitions to change county government. It was the passage of this statute that granted Berkeley County permission to have a five-member governing body.

In this statute the legislature specified four different types of county government that would be automatically permitted upon reciept of a petition. Each of those four types requires at-large election of all commissioners or councilpeople. Any body larger than three is to be called a "county council." Jefferson's five-member "county commission" was grandfathered in.

Some people read this to mean that the legislature will not approve any change in county government that calls for election by district (as opposed to at-large). That is not necessarily so. The legislature makes the law, and any law the legislature makes the legislature may change. Any petition submitted that calls for a county government structure different from the listed four may be approved by the legislature should the petitioners' case be persuasive to the legislature.

This year I will sponsor a bill that adds a provision for district elections to the list of automatic approvals. Even if my bill fails that wouldn't mean that the legislature would necessarily automatically refuse a petition to have a county government elected by district. If the legislature were to receive a petition advocating a particular form of district election it found persuasive, the legislature could just add that form to the list.

I'm told that many people in Berkeley County would like to see the name of its governing body changed back to "county commission." That would mean amending the statute we've been discussing here. This would provide the occasion to add a district election form of government.

----------

Delegate John Doyle is a regular columnist for The Shepherdstown Chronicle. His opinions are his own and not that of the paper's. He can be reached at john doyle@wvhouse.gov.